Does Tort Law Deter Individuals? A Behavioral Science Study

Journal of Empirical Legal Studies

Volumn 9, Issue 3, 2012, Pages 567-603

  Cardi, W Jonathan ^a   Penfield, Randall D ^b   Yoon, Albert H ^c  

^a WAKE FOREST UNIVERSITY   (United States)

^b UNIVERSITY OF NORTH CAROLINA AT GREENSBORO   (United States)

^c UNIVERSITY OF TORONTO   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84870348117     PISSN: 17401453     EISSN: 17401461     Source Type: Journal    
DOI: 10.1111/j.1740-1461.2012.01263.x     Document Type: Article

References (92)

1. See, e.g., Bohlen, The Rule in Rylands v. Fletcher, 59 U. Pa. L. Rev. 318-20 (1911) (explaining the Rylands case by reference to differing economic conditions in England and the United States)
2. Roscoe Pound, The Economic Interpretation and the Law of Torts, 53 Harv. L. Rev. 365 (1940) (describing a variety of economic analyses of law).
3. Guido Calabresi, The Cost of Accidents (1970).
4. Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29 (1972).
5. John C. Moorhouse, Andrew P. Morriss & Robert Whaples, Law & Economics and Tort Law: A Survey of Scholarly Opinion, 62 Alb. L. Rev. 667, 667-68 (1998)
6. Although law and economics still constitutes a majority share of torts scholarship, its influence arguably peaked in the 1980s, particularly with the iconic works, Steven Shavell, Economic Analysis of Accident Law (1987) and William M. Landes & Richard A. Posner, The Economic Structure of Tort Law (1987).
7. W. Jonathan Cardi & Michael C. Green, Duty Wars, 81 S. Cal. L. Rev. 671-707 (2008)
8. Izhak Englard, Law and Economics in American Tort Cases: A Critical Assessment of the Theory's Impact on Courts, 41 U. Toronto L.J. 359 ((discussing the effect of economic theory on courts' decisions).
9. A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 870-75 (1998)
10. Aaron Xavier Fellmeth, Civil and Criminal Sanctions in the Constitution and Courts, 94 Geo. L.J. 53 (2005).
11. Robert D. Cooter, Three Effects of Social Norms on Law: Expression, Deterrence, and Internalization, 79 Or. L. Rev. 16 (2000).
12. John C.P. Goldberg, Twentieth-Century Tort Theory, 91 Geo. L.J. 513, 553-60 (2003
13. Jules L. Coleman, Risks and Wrongs 334-35 (1992)
14. Benjamin C. Zipursky, Sleight of Hand, 48 Wm. & Mary L. Rev. 1999
15. Steven Hetcher, Non-Utilitarian Negligence Norms and the Reasonable Person Standard, 54 Vand. L. Rev. 865-66 (2001).
16. William H. Rodgers, Jr., Negligence Reconsidered: The Role of Rationality in Tort Theory, 54 S. Cal. L. Rev. 16-23 (1980)
17. Susan Randall, Corrective Justice and the Torts Process, 27 Ind. L. Rev. 1-50 (1993)
18. Neil S. Siegel, Sen and the Hart of Jurisprudence: A Critique of the Economic Analysis of Judicial Behavior, 87 Cal. L. Rev. 1581-1592 (1999) 1989
19. Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1477-79 (1998)
20. Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 Cal. L. Rev. 1051-1053 (2000).
21. Gary T. Schwartz, Reality in the Economic Analysis of Tort Law: Does Tort Law Really Deter? 42 UCLA L. Rev. 381-87 (1994)
22. John A. Siliciano, Corporate Behavior and the Social Efficiency of Tort Law, 85 Mich. L. Rev. 1820-1864 (1987)
23. Troyen A. Brennan, Environmental Torts, 46 Vand. L. Rev. 1-6 (1993)
24. The Impact of Liability Law on Safety and Innovation (Peter W. Huber & Robert A. Litan, eds., 1991) (including chapters that conclude the same in products liability cases).
25. See generally Howard Latin, "Good" Warnings, Bad Products, and Cognitive Limitations, 41 UCLA L. Rev. 1193 (examining the psychological limitations on the effectiveness of products warnings and corresponding liability). Studies have shown that citizens are roundly ignorant of the criminal law and that they unreasonably discount the chances of getting caught. Paul H. Robinson & John M. Darley, Does Criminal Law Deter? A Behavioral Science Investigation, 24 Oxford J. Legal Stud. 173, 174 (2004). Particularly in light of the fact that reasonableness in tort law is defined primarily by jury decisions and narrow, factually tailored court rulings, it seems likely that the public remains ignorant of the common boundaries of reasonable care.1994
26. Many of the foregoing criticisms are offered by Ronen Perry in his excellent article, Re-Torts, (arguing the inefficacy of deterrence by pointing out "the difficulties faced by fact-finders in implementing" economic efficiency, "potential injurers' inability to choose between negligence and non-negligence and the impact of counter-incentives on their conduct," and "the problem of under-enforcement by actual victims").Ala. L. Rev.2008
27. Michelle M. Mello & Troyen A. Brennan, Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform, 80 Tex. L. Rev. 1613-14 (2002
28. Theodore Eisenberg, Measuring the Deterrent Effect of Punitive Damages, 87 Geo. L.J. 347-347 (1998
29. E. Ann Puckett, How Potential Employers Approach Disability: A Survey of Law Students in Georgia, 69 U. Pitt. L. Rev. 509
30. Amy L. Otto et al., The Biasing Impact of Pretrial Publicity on Juror Judgments, 18 Law & Hum. Behav. 453 (1994)
31. Ananish Chaudhuri, Sustaining Cooperation in Laboratory Public Goods Experiments: A Selective Survey of the Literature, 14 Experimental Econ. 47 (2011).
32. Nikos Nikiforakis & Hans-Theo Normann, A Comparative Statics Analysis of Punishment in Public-Good Experiments, 11 Experimental Econ. 363-65 (2008
33. Aaron Edlin & Pinar KaracaMandic, The Accident Externality from Driving (Public Law Research Paper No. 130, Univ. of Cal., Berkeley, 1999) (examining how road fatalities might be tied to miles driven; these might be reduced by appropriately designed taxes or insurance premia).
34. Michael J. Moore & W. Kip Viscusi, Compensation Mechanisms for Job Risks 133 (1990
35. James R. Chelius, Liability for Industrial Accidents: A Comparison of Negligence and Strict Liability Systems, 5 J. Leg. Stud. 303-06
36. Several studies have also measured the deterrent effect of punitive damages specifically. W. Kip Viscusi, The Social Costs of Punitive Damages Against Corporations in Environmental and Safety Torts, 87 Geo. L.J. 285, 296-98 (1998) (finding no clear correlation or pattern between punitive damages and deterrence of risky behavior).
37. Michelle J. White, An Empirical Test of the Comparative and Contributory Negligence Rules in Accident Law, 20 Rand J. Econ. 308 (1989)
38. Frank A. Sloan, Bridget A. Reilly & Christoph Schenzler, Effects of Tort Liability and Insurance on Heavy Drinking and Drinking and Driving, 38 J.L. & Econ. (1995)
39. Paul H. Rubin & Joanna M. Shepherd, Tort Reform and Accidental Deaths, 50 J.L. & Econ. 221-221 (2007).
40. Joanna Shepherd, Tort Reforms' Winners and Losers: The Competing Effects of Care and Activity Levels, 55 UCLA L. Rev. 905-905 (2008)
41. Albert H. Yoon, Damage Caps and Civil Litigation: An Empirical Study of Medical Malpractice Litigation in the South, 3 Am. L. & Econ. Rev. 221-23 (2001
42. Frank A. Sloan, Emily M. Stout, Kathryn Whetten-Goldstein & Lan Liang, Drinkers, Drivers, and Bartenders: Balancing Private Choices and Public Accountability x (2000).
43. Alma Cohen & Rajeev Dehejia, The Effect of Automobile Insurance and Accident Liability Laws on Traffic Fatalities, 47 J.L. & Econ. 357-382 (2004)
44. J. David Cummins, Richard D. Phillips & Mary A. Weiss, The Incentive Effects of No-Fault Automobile Insurance, 44 J.L. & Econ. 427-427 (2001
45. A. Richard Derrig et al., The Effect of Population Safety Belt Usage Rates on Motor Vehicle-Related Fatalities, 34 Accidents Analysis & Prevention (2002)
46. Paul Zador & Adrian Lund, Re-Analysis of the Effects of No-Fault Auto Insurance on Fatal Crashes, 53 J. Risk & Ins. 226-235 (1986
47. S. Paul Kochanowski & Madelyn V. Young, Deterrents Aspects of No-Fault Automobile Insurance: Some Empirical Findings, 52 J. Risk & Ins. 269 (1985
48. M. Elisabeth Landes, Insurance Liability and Accidents: A Theoretical and Empirical Investigation of the Effect of No-Fault Accidents, 25 J. Law & Econ. 49-50 (1982
49. Frank A. Sloan et al., Tort Liability Versus Other Approaches for Deterring Careless Driving, 14 Int'l Rev. L. & Econ. 66-67 (1994
50. Michelle M. Mello & Troyen A. Brennan, Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform, 80 Tex. L. Rev. 1595-1598 (2002).
51. Don Dewees, David Duff & Michael Trebilcock, Exploring the Domain of Accident Law (1996).
52. Michael L. Smith, Deterrence and Origin of Legal System: Evidence from 1950-1999, 7 Am. L. & Econ. Rev. 350 (2005).
53. Daniel S. Nagin, Criminal Deterrence Research at the Outset of the Twenty-First Century, 23 Crime & Just. 1 (1998
54. Michael Tonry, Learning from the Limitations of Deterrence Research, 37 Crime & Just. (2008
55. Linda S. Beres & Thomas D. Griffith, Habitual Offender Statutes and Criminal Deterrence, 34 Conn. L. Rev. 55-59 (2001)
56. Isaac Ehrlich, Crime, Punishment, and the Market for Offenses, 10 J. Econ. Persp. 43, 55-63 (surveying the research on the question)
57. Peter W. Greenwood et al., Rand Corp., Three Strikes and You're Out: Estimated Benefit and Cost of California's Mandatory New Sentencing Laws 16 (1994) (surveying recent research supporting that increases in sentencing do not provide additional deterrence). But see Daniel Kessler & Stephen D. Levitt, Using Sentence Enhancements to Distinguish Between Deterrence and Incapacitation, 42 J.L. & Econ. 343, 343 (1999) (discriminating between deterrent and incapacitation effect and finding deterrent effect to be significant).
58. A sample survey is appended to this article.
59. See note 49 and accompanying text.
60. Ann-Renée Blais, Elke U. Weber, A Domain-Specific Risk-Taking (DOSPERT) Scale for Adult Populations, 1 Judgment & Decision Making 33, 36 (2006).
61. Although we considered using a fifth survey imposing both criminal and tort sanctions, we concluded that the benefit of learning the effect of combined deterrence did not justify the additional subjects required to achieve sufficient power for five surveys rather than four.
62. Although courts and statutes frequently differentiate between civil and criminal fines, the substance of the distinction has also been found to be meaningless in certain contexts. See, e.g., United States v. Halper, 490 U.S. 435 (1989) (overturning civil fine, after defendant had already been ordered to pay a criminal fine, for violation of the double jeopardy clause of the Fifth Amendment).
63. Still, inherent in the language of Survey 2 is the common understanding that one typically is unlikely to be caught and held criminally responsible for most behaviors of the type described in the vignettes.
64. In hindsight (i.e., during data collection), we concluded that language such as "for which you might be held responsible" might have struck a better balance in Survey 2. Thus, we created a new version of Survey 2 and assigned it to a new group of torts students at Villanova. Our thanks to Professor Michael Moreland at Villanova for his aid in this regard. The results indicated no difference in the findings generated by the alternate language.
65. Ideally, the order of the first nine questions of each survey would have been randomized. Unfortunately, SurveyMonkey did not offer this feature at the time.
66. See Surveymonkey is used extensively in psychological research. It has even made its way into legal research. See, e.g., Wendy E. Hollingshead Corbett & Justin R. Corbett, Community Mediation in Economic Crisis: The Reemergence of Precarious Sustainability, 11 Nev. L.J. 458 (2011) (reporting results of a survey used to "gauge the impact of the faltering economy on community mediation centers nationwide")http://www.surveymonkey.com
67. Alayna Jehle, Monica K. Miller & Markus Kemmelmeier, The Influence of Accounts and Remorse on Mock Jurors' Judgments of Offenders, 33 Law & Human Behav. 393 (2009
68. Philippa Foot, The Problem of Abortion and the Doctrine of the Double Effect, in Virtues and Vices and Other Essays in Moral Philosophy 19 (1978).
69. In essence, the sign is usually ignored (the sign just reflects which condition has a higher mean).
70. For Vignette 3 (Drive Call), the partial eta-squared was 0.011 (very small), and the conditional means were:
71. The effect seems to be related to a very high mean for nonwhites for Condition 1.
72. For Vignette 4 (Good Samaritan), the partial eta-squared was 0.037 and produced the following conditional means:
73. At the time of the study, one of the authors was a professor at the University of Kentucky. It is notable that the 10-year-old daughter of one of the authors correctly predicted the study's outcome. Mia Cardi explained: "People do the right thing because they feel that it is right, not because they might have to pay money for their mistake." Mia would have made a better principal investigator for this study than her father.
74. See generally Judgment Under Uncertainty: Heuristics and Biases (1982) (Daniel Kahneman, Paul Slovic & Amos Tversky, eds.) (collecting research on cognitive bias in risk assessment)
75. R. Sunstein, Behavioral Analysis of Law, 64 U. Chi. L. Rev. (1997
76. Egocentric bias would not have influenced the criminal prime in the same way because the study's criminal sanctions punished the behavior described in each vignette, without regard to any resulting injury. Of course, it is possible that egocentric bias might have affected subjects' perceptions of the likelihood of getting caught. This possibility is discussed in the following paragraphs.
77. Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 Stan. L. Rev. 683-683
78. Recall that there was a slight down-tick in the cumulative likelihood of risky behavior in a comparison between the Tort Survey and the other conditions (Table 3), but these differences were not statistically significant.
79. Ruth Ruttenberg, W. Jonathan Cardi & Estye Ross, The Taxpayer's Burden from Product-Related Injuries, 21 Kan. J.L. & Pub. Pol'y 155-57 (2011)
80. Although umbrella liability policies are available, many people-and particularly the law student subjects of this study-do not carry them. Furthermore, not even umbrella policies cover some of the activities described in the vignettes-for example, intentional harms.
81. Cf. generally James Gibson, Doctrinal Feedback and (Un)reasonable Care, 94 Va. L. Rev. 1641 (proposing that this phenomenon, in some cases, creates a loop that constantly ratchets up levels of care-for example, in the medical field, where fear of liability causes physicians to practice defensive medicine, the defensive practices then become the standard of care and physicians are forced to act even more defensively).2008
82. It is helpful to think about this concept in concrete terms. Suppose that the threat of tort sanctions exerted 10 utiles of deterrent pressure on one's conduct and that social norms exerted between 50 and 100 utiles of deterrent pressure (the precise number differing according to the individual, the circumstances, and the particular norm). If 20 utiles of deterrence were all that is necessary to deter one from undertaking a particular risk, then the existence of tort law would be superfluous.
83. Linda S. Anderson, Theodore G. Chiricos & Gordon P. Waldo, Formal and Informal Sanctions: A Comparison of Deterrent Effects, 25 Soc. Probs. 103 (1977
84. Harold G. Grasmick & Robert J. Bursik, Jr., Conscience, Significant Others, and Rational Choice: Extending the Deterrence Model, 24 Law 3Soc'y Rev. 837-838 (1990
85. Michael Wenzel, The Social Side of Sanctions: Personal and Social Norms as Moderators of Deterrence, 28 L. & Hum. Behav. (2004
86. It is possible that such a finding is limited to the context of these two particular vignettes. Perhaps, to continue the heuristic in the previous notes, the competing desire exerts -100 utiles of pressure toward risk, overwhelming both the deterrent pressure of social norms and tort law. Future testing of a wider range of vignettes is necessary to reach a conclusion regarding this point.
87. Theodore Y. Blumoff, The Neuropsychology of Justifications and Excuses: Some Problematic Cases of Self-Defense, Duress, and Provocation, 50 Jurimetrics 391-425 (2010).
88. One possible rejoinder is that perhaps the social norm in favor of throwing the switch is so strong that it completely overwhelmed the relatively weak deterrent effect of tort sanctions. On the other hand, the study's seven-point Likert scale (in combination with the study's relatively large sample size) should be sensitive enough to register even small marginal effects created by the threat of tort liability. As mentioned previously, future testing of a wider range of vignettes is necessary to reach a conclusion regarding this point.
89. Janne Chung & Gary S. Monroe, Exploring Social Desirability Bias, 44 J. Bus. Ethics 291-293 (2003).
90. Guido Calabresi, The Costs of Accidents (1970).
91. Jason M. Solomon, Equal Accountability Through Tort Law, 103 Northwestern U.L. Rev. 1772-73 (2009).
92. The incredible variety of implicit bias literature may be accessed at https://implicit.harvard.edu/implicit/